Decision Date: 08/17/95 Archive Date: 01/16/96
DOCKET NO. 93-18 581 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUES
1. Entitlement to service connection for a psychiatric
disorder to include post-traumatic stress disorder.
2. Entitlement to service connection for a left ankle
disability.
3. Entitlement to service connection for a right ankle
disability.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Melissa F. Marquez, Associate Counsel
INTRODUCTION
The appellant had active service from May 1968 to December
1969. This matter came before the Board of Veterans' Appeals
(hereinafter Board) on appeal from a December 1992 rating
decision of the Huntington, West Virginia Regional Office
(hereinafter RO), of the Department of Veterans Affairs
(hereinafter VA), which denied entitlement to service
connection for an acquired psychiatric disorder to include
post-traumatic stress disorder, as well as a bilateral ankle
disability.
REMAND
Service medical records indicate that at the time of
examination for entry into service, the appellant reported a
pre-service history of a chip fracture of the left ankle
incurred approximately 10 years earlier. Upon examination
prior to entry into active duty no current symptomatology
reported or found. Subsequently, such records reflect that
the appellant complained of bilateral ankle and foot pain
following physical exertion. Upon examination in May 1968,
the examiner noted the presence of edema and exquisite
tenderness of both feet and ankles, and therefore diagnosed
acute tendonitis of the extensor tendons, with limited duty
and orthotics recommended. At that time, the appellant also
reported that he had a similar exacerbation of ankle swelling
and pain “just prior” to entering active duty.
Subsequently, a July 1968 x-ray of both ankles demonstrated
some degenerative changes at the anterior aspect of the talus
on the right ankle, with no abnormalities of the left ankle
found. Upon examination prior to separation from active
duty, no orthopedic abnormalities were reported by the
appellant or found by the examiner, and the appellant
specifically denied a history of or current foot trouble,
arthritis, or bone or joint abnormalities.
Personnel records indicate that the appellant served as a
radio teletype operator and a messenger for approximately 14
months with the HHC 34th Engineering Battalion, and was
awarded the National Defense Service Medal, the Vietnam
Service Medal, and the Vietnam Campaign Medal. Service
medical records do not contain any complaints, finding, or a
diagnosis of a psychiatric disability, post-traumatic stress
disorder or any related symptomatology.
The record reflects that the appellant filed an initial
application for disability compensation in July 1992,
requesting entitlement to service connection for post-
traumatic stress disorder and a bilateral ankle condition.
In response to the RO’s request for specific information
regarding relevant post-service medical treatment, as well as
stressful events experienced during wartime service, the
appellant reported that he witnessed numerous deaths,
including the hanging of enemy soldiers from a flagpole by
South Vietnamese soldiers, while serving as a messenger
traveling between various cities and locations in Vietnam.
Additionally, he reported that he was fired upon by snipers
and fired back during that time. Finally, he reported that
he had received no relevant post-service medical treatment
for his bilateral ankle condition, but had suffered from
related pain since active duty.
Moreover, during a September 1992 VA psychiatric examination,
the appellant reported a similar history of witnessing
torture of enemy soldiers as well as the deaths of many
additional people around him, with current symptomatology
consisting of frequent nightmares and flashbacks related to
such experiences, insomnia, irritability, suicidal ideations,
anxiety, and depression. Following a psychiatric
examination, mild to moderate post-traumatic stress disorder
and a major affective disorder were diagnosed.
By a December 1992 rating decision, entitlement to service
connection for a psychiatric disability to include post-
traumatic stress disorder and service connection for a
bilateral ankle disability were denied. The appellant was
notified of the decision that month, and expressed
disagreement with the following month.
Evidence which has come into the record since such rating
decision includes a VA outpatient psychiatric examination
report and several statements from Sammie Heflin, M.S.W., of
Princeton Veterans Center, all indicating a current diagnosis
of post-traumatic stress disorder.
The Board has a duty to assist the veteran in the development
facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West
1991).
Substantiation of claimed stressors is of great importance in
deciding the current issue on appeal. See 38 C.F.R. § 3.304
(f) (1994); Wilson v. Derwinski, 2 Vet.App. 614, 618 (1992);
Wood v. Derwinski, 1 Vet.App. 190, 192 (1991) reconsideration
denied, 1 Vet.App. 406 (1991). While the appellant submitted
an October 1992 stressor statement indicating dates,
locations, and duty assignments while serving in Vietnam,
there is no indication in the record that the RO has made an
attempt to verify any reported stressors. Such an attempt
must be made prior to appellate review of such issue.
Additionally, while the record reflects that the appellant
has been diagnosed with delayed post-traumatic stress
disorder, such diagnoses do not emphasize recognizable
stressors or indicate consideration of the required
diagnostic criteria, and are based solely on the appellant’s
unverified account of wartime experiences. Therefore, we
conclude that a psychiatric examination should be conducted
by a board of two psychiatrists after stressor information is
obtained so that the examiners have adequate information upon
which to rely. West v. Brown, 7 Vet.App. 70 (1994). In this
regard, it is noted that the appellant has been additionally
diagnosed with a major affective disorder, and a passive
aggressive personality disorder. Finally, there are no
contemporaneous clinical records associated with the
statements from Princeton Vet Center currently of record. An
attempt to obtain such relevant records will be accomplished
at this time.
With regard to the issue of service connection for
disabilities of the left and right ankle, it is unclear from
the service medical records as to the pre-service history of
bilateral ankle symptomatology and pathology. While the
appellant reported only a pre-service history of a chip
fracture of the left ankle with no current residuals upon
examination prior to entrance into active duty, he reported a
differing pre-service history to include exacerbations of
pain and swelling of both ankles upon examination in May and
June 1968. Additionally, degenerative changes in only the
right ankle were suggested upon x-ray in July 1968. Those
finding have not been confirmed.
Whether the appellant had a pre-service disability of either
ankle, including treatment therefore, is extremely relevant
to the issue of service connection currently before us, and
must be clarified to the extent possible prior to appellate
review. See Crowe v. Brown, 7 Vet.App. 238 (1995).
Moreover, the record reflects that the appellant has not been
afforded a VA examination in order to assess the nature and
etiology of any current pathology of the ankles.
Accordingly, the case is REMANDED for the following
development:
1. The RO should contact the appellant
to determine the names, addresses, and
dates of treatment of any physicians,
hospitals or treatment centers (private,
VA or military) who provided him with
additional relevant medical treatment not
already reported or submitted to the RO
or the Board, including any pre-service
medical treatment for any injuries or
disabilities of the left or right ankle,
as well as any current relevant medical
treatment. After obtaining the
appropriate signed authorization for
release of information forms from the
appellant, the RO should contact each
physician, hospital, or treatment center
specified by the appellant to obtain any
and all medical or treatment records or
reports relevant to the above mentioned
claim which are not already associated
with the claims folder. All pieces of
correspondence, as well as any medical or
treatment records obtained, should be
made a part of the claims folder. If
records are sought but not received, the
claims folder should contain
documentation of the attempts made to
obtain the records. The appellant and
his representative should also be
informed as to the negative results.
38 C.F.R. § 3.159 (1994).
2. The RO should again contact the
appellant and request that he provide any
additional information pertaining to
specific traumatic events experienced
while serving in Vietnam, including the
death of any friends, and the reported
hangings or torturous activities
witnessed. He should provide specific
information such as the date (month, day
and year) and location of the incidents
and unit assignment. He should also
provide the name, with the correct
spelling, of anyone whose killing he
witnessed or whose body he saw, if
applicable. In particular, the RO should
request the appellant to provide any
information in addition to the statement
submitted in October 1992 which would
help to substantiate his claim. In the
event he cannot recall the specific dates
of the incidents and other particulars,
he should provide as close an
approximation and as much information as
possible.
3. After obtaining the appropriate
signed authorization for release of
information forms from the appellant, the
RO should contact the Princeton Vet
Center, 905 Mercer Street, Princeton,
West Virginia, 24740, and request copies
of all clinical or treatment records
since June 1991, the date of his first
visit. All pieces of correspondence, as
well as any medical or treatment records
obtained, should be made a part of the
claims folder. If records are sought but
not received, the claims folder should
contain documentation of the attempts
made to obtain the records. The
appellant and his representative should
also be informed as to the negative
results. 38 C.F.R. § 3.159 (1994).
4. The RO should request abstracts of
the appellant's military unit's history,
including any additional relevant
operational reports for the relevant time
period, by contacting appropriate
sources, including but not limited to the
National Technical Information Service
(NTIS), 5285 Port Royal Road,
Springfield, Virginia, 22151. The RO
should also request any relevant
journals, as well as company, battalion,
brigade, or division level records for
the unit with which he served during his
Vietnam military service, by contacting
appropriate sources, including but not
limited to the NARA, Military Service
Branch, Washington, D.C. 20409. The
appellant's military personnel records
indicate that he served with the HHC 34th
Engineering Battalion (Construction) from
October 1968 to December 1969. The RO is
requested to review the appellant's
statement dated in October 1992 currently
associated with the claims folder, as
well as any additional information
provided with respect to this REMAND,
that specifically identifies the claimed
stressors. Any records obtained, as well
as all correspondence related thereto,
should be associated with the claims
folder.
5. The RO should contact the United
States Army and Joint Services
Environmental Support Group (ESG), 7798
Cissna Road, Springfield, Virginia 22150,
and request information, based on the
aforementioned statements and personnel
records, as to whether the appellant was,
in fact, exposed to in-service combat,
and/or a service stressor as claimed.
6. Upon receiving the requested
information, the RO should schedule the
appellant for an examination by a board
of 2 psychiatrists, who have not
previously examined the veteran, to
determine whether post-traumatic stress
disorder is currently manifested, and
whether it is attributable to his wartime
service. In particular, the examiners
are requested to differentiate
symptomatology attributable to post-
traumatic stress disorder, if found, from
any other psychiatric symptomatology
found. The report of examination should
be based on a complete and accurate
description of events during service, and
should contain a detailed social,
industrial, and military history, as well
as any clinical findings upon which a
diagnosis is based. All subjective
complaints reported by the veteran, as
well as an objective analysis of
symptomatology should be reported in
detail. A psychological examination,
with appropriate testing should also be
accomplished. If these matters cannot be
medically determined without resort to
mere conjuncture, this should be
commented on by the examiners in their
reports. The claims folder should be
made available to the examiners for
review purposes prior to the psychiatric
and psychological examinations. The
psychiatric and psychological
examinations should be conducted and
reported in accordance with the
guidelines set forth in the VA
Physician's Guide for Disability
Evaluation Examinations.
7. The RO should also schedule the
appellant for a complete orthopedic
examination to determine the nature and
etiology of any disability of the right
or left ankle currently manifested. If
chronic impairment of either ankle is
found, an opinion as to whether it is
attributable to, or was made worse by,
the appellant's military service should
be entered. All indicated tests and
studies should be done, including
appropriate x-rays. If these matters
cannot be medically determined without
resort to mere conjecture, this should be
commented upon in the report. The
examiner is further requested to
adequately summarize the relevant
history, including relevant treatment,
previous diagnoses and x-ray findings, as
well as all current objective clinical
findings and subjective complaints, and
describe in detail the reasons for all
medical conclusions. The examination
should be conducted and reported in
accordance with the guidelines set forth
in the VA Physician's Guide for
Disability Evaluation Examinations. The
claims folder should be made available to
the examiner for review purposes prior to
the examination, and the complete
examination report, including any x-ray
films, should be associated with the
claims folder.
8. The RO should then readjudicate the
issues of entitlement to service
connection for a psychiatric disability,
to include post-traumatic stress
disorder, and entitlement to service
connection for disabilities of the left
and right ankle, which should include
consideration of any evidence obtained
pursuant to this remand. If and where
appropriate, the provisions of 38 C.F.R.
§ 3.304(b) and (f), and 38 C.F.R. § 3.306
should be discussed and applied.
In order to avoid undue delay in this case, the RO should
make certain that the instructions contained in the REMAND
decision, detailing the requested development, have, in fact,
been substantially complied with. When this development has
been completed, and if the benefits sought are not granted,
the case should be returned to the Board for further
appellate consideration, after compliance with appropriate
appellate procedures. It is requested that this statement
specifically set forth the reasons and bases for the
decision. No action by the appellant is required until he
receives further notice.
The Board intimates no opinion, either legal or factual, as
to the ultimate disposition warranted in these claims,
pending completion of the requested development.
MICHAEL D. LYON
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1994).
- 2 -